July 13, 2005

Danger: mines

Guilty verdict - possession with intent to deliver, with deadly weapon enhancement.

My guy had to testify if we had a chance of making a defense of unwitting possession of a controlled substance. Luckily, his only prior felony conviction was for simple possession in 2004, and we started with the judge ruling that the state couldn't mention that fact, or the fact that my client had been arrested on a DOC escape warrant. Unless someone else were to open the door.

On the witness stand, apropos of nothing (and also non-responsive):

"Well, I was arrested on a DOC warrant, they told me it was for escape, but I told them I never escaped..."

Then, "When they showed me those drugs, I was so afraid I'd lose my job, because I'd been a (name of skilled trade) for years and years, and I never had something like this happen..."

What was I going to do? Move to strike? Ask for a curative instruction - "The defendant misspoke, and the jury will disregard the defendant's damaging admissions"? I felt sick. I felt like I'd sat down with my client and a map of a minefield, and told him where all the mines were buried. Even after the judge as much as warned him in open court, "don't step there, there, or there," off he went, boldly and confidently striding forward.


P.S.: caution: you may experience acid reflux and stomach upset when a prosecutor in closing argument holds up something like this,

says, "I don't know, does that look like a kitchen knife to you?", and several jurors chuckle.